Order Granting Final Approval

Case 4:14-md-02541-CW Document 746 Filed 12/06/17 Page 1 of 15 1 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 NORTHERN DISTRICT OF CALIFORNIA 14 OAKLAND DIVISION 15 16 IN RE: NATIONAL COLLEGIATE No. 4:14-md-2541-CW ATHLETIC ASSOCIATION ATHLETIC 17 GRANT-IN-AID CAP ANTITRUST ORDER GRANTING PLAINTIFFS’ LITIGATION MOTION FOR FINAL APPROVAL OF 18 CLASS ACTION SETTLEMENT AND FINAL JUDGMENT AS TO DAMAGES 19 CLAIMS (“ORDER AND FINAL JUDGMENT”) 20 This Document Relates to: DATE: November 17, 2017 21 TIME: 9:00 a.m. ALL ACTIONS EXCEPT DEPT: Courtroom 2, 4th Floor 22 JUDGE: Hon. Claudia Wilken Jenkins v. Nat’l Collegiate Athletic Ass’n 23 Case No. 4:14-cv-02758-CW COMPLAINT FILED: March 5, 2014 24 25 26 27 28 Case 4:14-md-02541-CW Document 746 Filed 12/06/17 Page 2 of 15 1 2 I. BACKGROUND 3 Plaintiffs seek final approval of a settlement that provides for payment of approximately 50% 4 of the classes’ single damages claims after fees and expenses are deducted. The settlement agreement 5 is the result of extensive litigation and arm’s-length negotiations between the parties. Defendants 6 agree to pay $208,664,445.00, which (after deduction of fees and expenses) will be disbursed to 7 student-athletes who attended Division I schools that plaintiffs’ evidence shows would have awarded 8 the full cost of attendance at those schools (“COA”), but for the NCAA bylaw in effect until January 9 1, 2015, that capped the maximum grant-in-aid (“GIA”) at less than COA. The average recovery for 10 a class member who played his or her sport for four years would be approximately $6,000.1 After 11 final approval of the proposed settlement, each impacted class member with calculated damages will 12 be mailed a check, with no claim form required and no right of any reversion of funds to defendants. 13 Plaintiffs’ counsel, who have litigated numerous antitrust and other matters against the 14 NCAA over the years, believe this is an exceptional result for the proposed class. As this Court 15 knows, antitrust matters against the NCAA involve unique arguments and have had narrow historical 16 success. And the NCAA has been willing to devote significant resources to vigorously defending 17 them, including on appeal. Thus, not only is the monetary size of the settlement a major benefit to 18 the class, the likelihood of near-term payout is also significant. 19 Finally, the settlement does not release or bar in any way the class claims for prospective 20 injunctive relief from going forward—and plaintiffs will continue to vigorously pursue them. 21 II. FINAL APPROVAL OF SETTLEMENT 22 The Court grants the Motion for Final Approval of Settlement and grants final approval to the 23 Settlement Agreement, as amended by the parties’ stipulations filed on March 1, 2017 and March 21, 24 2017. All further references to the Settlement Agreement shall be to the Settlement Agreement as 25 26 1 Since the settlement was reached, many additional schools began paying or stated an intent to pay COA. Eligible class members from these additional COA-paying schools will also receive pay- 27 ment from the settlement fund. As such, the number of class members eligible to receive payment has grown significantly since the settlement was reached. 28 ORDER GRANTING MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - No: 14 -md-2541-CW - 1 - Case 4:14-md-02541-CW Document 746 Filed 12/06/17 Page 3 of 15 1 amended in the parties’ stipulations. The Settlement Agreement is hereby incorporated into this 2 Order and Final Judgment, and all terms used herein shall have the same meanings set forth in the 3 Settlement Agreement. 4 III. SETTLEMENT CLASSES 5 The Settlement2 resolves claims on behalf of the following Settlement Classes: 6 Division I FBS Football Class: All current and former NCAA Division I Football Bowl Subdivision (“FBS”) football student-athletes 7 who, at any time from March 5, 2010 through the date of Preliminary Approval of this Settlement, received from an NCAA member 8 institution for at least one academic term (such as a semester or quarter) a Full Athletics Grant-In-Aid (defined herein). 9 Division I Men’s Basketball Class: All current and former NCAA 10 Division I men’s basketball student-athletes who, at any time from March 5, 2010 through the date of Preliminary Approval of this 11 Settlement, received from an NCAA member institution for at least one academic term (such as a semester or quarter) a Full Athletics 12 Grant-In-Aid. 13 Division I Women’s Basketball Class: All current and former NCAA Division I women’s basketball student-athletes who, at any time from 14 March 5, 2010 through the date of Preliminary Approval of this Settlement, received from an NCAA member institution for at least 15 one academic term (such as a semester or quarter) a Full Athletics Grant-In-Aid. 16 “Full Athletics Grant-In-Aid” means either (1) athletically related financial aid for any 17 particular academic term (year, semester, or quarter), in an amount equal to or greater than tuition 18 and fees, room and board, and required course-related books, or (2) athletically related financial aid 19 that was not equal to or greater than tuition and fees, room and board, and required course-related 20 books only because it was reduced by the applicable NCAA member institution by an amount of 21 non-athletically related financial aid received by the student-athlete 22 The Court has personal jurisdiction over the Plaintiffs and all Settlement Class Members and 23 has subject matter jurisdiction to approve this Settlement and Settlement Agreement. 24 25 26 27 2 As set forth in the Settlement Agreement, “‘Settlement’ means the settlement of the Released Claims [defined therein].” 28 ORDER GRANTING MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - No: 14 -md-2541-CW - 2 - Case 4:14-md-02541-CW Document 746 Filed 12/06/17 Page 4 of 15 1 IV. SETTLEMENT CONSIDERATION 2 The total settlement amount provides for defendants to pay $208,664,445.00. This amounted 3 to approximately 100% of the settlement classes’ single damages claims at the time of settlement, as 4 calculated by plaintiffs’ expert economist, Dr. Daniel Rascher, whose econometric model statistically 5 predicts which Division I schools would more likely than not have paid the full COA at the start of 6 the class period, had the GIA cap been at full COA (or above).3 And the settlement amount equals 7 approximately two-thirds of single damages after including additional class members who attended 8 schools that adopted full COA by June of 2017. 9 V. THE SETTLEMENT IS FAIR, REASONABLE AND ADEQUATE 10 A. The Settlement Classes meet all requirements of Rule 23. 11 The Court preliminarily certified the three Settlement Classes for settlement purposes under 12 Rule 23(e). No objection to certification of those Settlement Classes has been filed. The Court 13 hereby certifies those three classes for settlement purposes only. 14 B. The parties have complied with Rule 23(c) notice requirements. 15 Class actions brought under Rule 23(b)(3) must satisfy notice provisions of Rule 23(c)(2), 16 and upon settlement of a class action, the “court must direct notice in a reasonable manner to all class 17 members who would be bound by the proposal.” Fed. R. Civ. P. 23(e)(l). Rule 23(c)(2) prescribes the 18 “best notice that is practicable under the circumstances, including individual notice” of particular 19 information. Fed. R. Civ. P. 23(c)(2)(B). 20 The proposed notice plan was undertaken and carried out pursuant to this Court’s preliminary 21 approval order by Gilardi & Co. LLC (“Gilardi”).4 Gilardi caused notice to be sent to 19,973 email 22 addresses and 25,949 postal addresses; approximately 1,689 potential class members had contact 23 information on both lists resulting in direct notice to 44,233 unique class members out of 24 25 3 See Expert Declaration of Daniel A. Rascher in Support of Motion for Preliminary Approval of Damages Classes, Feb. 3, 2017, ECF No. 560-4. 26 4 Declaration of Alan Vasquez Regarding Implementation of Class Notice Plan (“Vasquez 27 Decl.”), Oct. 4, 2017, ECF No. 706; andCorrected Declaration of Alan Vasquez Regarding Implementation of Class Notice Plan, Nov. 16, 2017, ECF No. 731 (“Corrected Vasquez Decl.”) 28 ORDER GRANTING MOT. FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT - No: 14 -md-2541-CW - 3 - Case 4:14-md-02541-CW Document 746 Filed 12/06/17 Page 5 of 15 1 approximately 53,748.5 Of the 19,973 emails, 3,020 bounced back as undeliverable, with 209 of the 2 bounce-backs having a corresponding postal address that was not returned as undeliverable.6 Of the 3 25,949 notices sent via postal mail, 3,806 were returned as undeliverable with 5 having a 4 corresponding email address that did not bounce back.7 Factoring in the returned mail, 5 approximately 39,310 unique class members were reached through direct notice (74% of the 6 classes).8 7 Gilardi established a case-dedicated notice website where class members could obtain more 8 information about the settlement. Both the direct notice and paid media efforts directed individuals to 9 this website.9 By May 12, 2017, Gilardi established a different website where schools could upload 10 contact information for potential class members and approve the usage of data collected during the In 11 Re: Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Litigation; NCAA letters sent to 12 member schools directed recipients to this website.10 13 To supplement direct notice, Gilardi implemented a comprehensive Internet notice campaign 14 that provided multiple channels for potential class members to be directed to the case website.11 And 15 Gilardi worked with the parties to create a party-neutral press release with information about the 16 litigation and the proposed settlements.12 The release issued on April 7, 2017.

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